A Review of Snigda Prakash’s All the Justice Money Can Buy, a Book on the Vioxx Tort Litigation

Snigda Prakash, All the Justice Money Can Buy (Kaplan Publishing 2011)

Snigda Prakash, a former National Public Radio reporter, has written an interesting book about the litigation against Merck & Co., the manufacturer of Vioxx, a prescription drug used to relieve pain and inflammation.  Merck withdrew its heavily-promoted drug from the market in 2004 due to concerns that consumers of Vioxx faced an increased risk of heart attacks and strokes; a deluge of tort lawsuits followed.

In All the Justice Money Can Buy, Prakash traces the history of the litigation, beginning with efforts by plaintiffs’ lawyers to sue the company even before Vioxx had been withdrawn from the market and concluding with the nearly $5 billion settlement agreement announced in late 2007 that covered the claims of most of the plaintiffs.

Much of Prakash’s book provides a detailed account of a trial in New Jersey in early 2007.  One of the plaintiff’s lawyers, Mark Lanier, allowed Prakash to go behind the scenes to see how he prepared and presented his case.  Wisely, Prakash accepted the opportunity to observe Lanier, a superb trial attorney from Texas, at work.

As discussed below, Prakash took full advantage of the access provided by Lanier and has provided a vivid and thorough reconstruction of a lengthy civil trial involving complicated issues.  All the Justice Money Can Buy will be especially interesting to civil litigators who actually try cases instead of resolving them through settlement or pretrial motions.

However, All the Justice Money Can Buy is not without its flaws.  Prakash admits that, by the end of the trial, she no longer is a neutral “observer” but wants the “plaintiffs’ lawyers . . . to win.”  This leads her, on occasion, to be gratuitously snide in her description of Merck’s lawyers.  In addition, in my view, Prakash focused too much of her attention and effort on a single trial.  She only briefly discusses the comprehensive settlement of the litigation, which likely will be its enduring legacy.

The Trial in New Jersey

Along with the lawyers and their clients, Prakash spent about six weeks in the frigid courtroom of Judge Carol E. Higbee, in Atlantic City, New Jersey, in the winter of 2007.  Lanier represented one plaintiff, the wife of Brian Hermans, who was taking Vioxx when he died of a heart attack at the age of 44 in September 2002.

Lanier already had made a strong impression in the Vioxx litigation by taking the first Vioxx case to trial in Texas.  In that case, the jury awarded more than $250 million in damages to the plaintiffs—an amount that was reduced by the trial court, under state law, to about $26 million.  (Several years later, the judgment of the Texas trial court was set aside on appeal.  The appellate court agreed with Merck’s argument that the plaintiff’s evidence on causation was insufficient.  This case is now pending before the Texas Supreme Court.)

Lanier’s co-counsel in New Jersey was Chris Seeger, who represented Mike Humeston.  Humeston, a Vietnam veteran often in pain because of shrapnel still in his left knee, was—like Brian Hermans—taking Vioxx when he had a heart attack in September 2001.  Seeger had already tried and lost Humeston’s case against Merck before Judge Higbee in 2005.  However, the judge subsequently ordered a new trial, in which Seeger again presented Humeston’s claim against Merck and its aggressive trial counsel, Diane Sullivan.  Prakash notes that “Seeger despised [Sullivan] because he thought she had bullied and taunted him in the courtroom [in the first case], often within earshot of the jury (and no doubt, also because she’d won).”

All the Justice Money Can Buy succeeds greatly in describing the Hobbesian world of high-stakes civil litigation.  Prakash describes the strained relationship between Lanier and Seeger; ego and the prospect of millions of dollars in attorney’s fees led to the attorneys’ sniping about each other before and after the trial.  Sullivan, Merck’s lead lawyer in New Jersey, repeatedly violated court orders and was threatened with sanctions as a result.  Judge Higbee, with many other Vioxx cases on her docket, did not follow up on her threats to sanction Sullivan, however; it seems that she did not want to appear to be unfair to Merck’s lawyers and thereby risk disqualification.  With apologies to John Keats, truth is beauty in civil litigation, and Prakash’s account of the trial rings true.

Given access to Lanier, Prakash provides an especially detailed portrait of a trial attorney at work.  Outside of the courtroom, Lanier is hyper-organized and meticulous in his preparation.  Inside the courtroom, Lanier is relentless in attempting to communicate his case clearly to the jury, using graphics and props to reinforce the themes introduced in his opening statement.  With Lanier, even seemingly spontaneous acts—such as securing a good-luck kiss from his wife in court, right before the start of the trial—appear to have been thought out in advance, strategically.  Details of such minor episodes are revealing; however, Prakash’s repeated descriptions of the meals Lanier ate during the trial clutter her account and should have been omitted.

The Verdict

As Prakash takes us through the trial, she describes how the plaintiffs effectively demonstrate that Merck aggressively marketed Vioxx despite being informed of the drug’s risks and that Merck profited greatly from this strategy.  In addition, she suggests that the plaintiffs’ lawyers—in particular, Lanier—were more persuasive and effective trial attorneys than Sullivan and her colleagues representing Merck.

It therefore comes as a surprise when the jury enters a verdict in favor of Merck and against Lanier’s client on the most important question of the case—whether Merck had failed to warn that Vioxx carried cardiovascular risks—but nevertheless enters a verdict against Merck and in favor of Seeger’s client on the very same question.

How could the jury arrive at such seemingly inconsistent verdicts?  The answer is that Merck amended its label between September 2001 (when Humeston’s heart attack occurred) and September 2002 (when Hermans died from his heart attack), and the jury apparently concluded that the amended label provided an adequate warning to Hermans, whose family was represented by Lanier.

In both cases, the jury found that Merck misrepresented Vioxx’s cardiovascular risks in its marketing to consumers and physicians and that Merck had intentionally not disclosed those risks.

For Lanier and his client, the jury’s answers to these questions would permit recovery only of the “few hundred dollars” that Hermans “had paid for the Vioxx prescriptions,” Prakash explained. (Merck also would have to pay Lanier’s trial expenses.)

The trial continued for Seeger and his clients and the jury awarded them $47.5 million in compensatory and punitive damages.  (Ultimately, Seeger persuaded the Humestons to settle for a lower sum.)

The Comprehensive Settlement

The Humeston and Hermans cases in New Jersey were just two of a number of Vioxx cases brought against Merck that were litigated to a verdict.  The verdicts in those 20 or so cases were mixed.  On the one hand, Merck prevailed more often than it lost, primarily because the plaintiffs often had difficulty proving that, under the governing law, Vioxx caused the injuries claimed by the plaintiffs.  On the other hand, in those cases where the plaintiffs did prevail, the juries awarded large sums in compensatory and punitive damages.

Although Merck initially insisted that it would take every Vioxx case to trial, Merck—and the plaintiffs’ lawyers suing the company—could see that continuing to litigate was risky for both sides.  In November 2007, both sides announced that they had reached an agreement that would effectively resolve the Vioxx litigation.  Merck agreed to pay $4.85 billion to settle about 50,000 claims.  The amount of money each claimant would receive depended upon a number of factors.

In the epilogue to All the Justice Money Can Buy, Prakash summarizes the settlement.  What was most notable about the agreement was that Merck did not settle directly with the plaintiffs but instead with their lawyers.  According to Prakash, “lawyers who wanted any of their clients to participate [were required] to recommend the deal to all their clients, and further, to withdraw from representing clients who rejected their advice and declined to settle.”

Critics of the Vioxx settlement, such as Professors Howard Erichson and Benjamin Zipursky, have argued that the structure of the settlement runs “afoul of several legal ethics rules.”  Most importantly, they note, “the decision to settle belongs to the client, not the client’s lawyer,” and “[a] lawyer who tells the client, ‘Settle or you’re fired!’ is hardly abiding by the client’s decision.”  However, despite the objections raised by critics of the settlement, it has been implemented.

As compelling as I found Prakash’s account of the trial in New Jersey, I wish she had spent more time discussing the settlement.  The issues raised by the structure of the settlement agreement are complicated and significant.  It would have been an even greater coup for Prakash if she would have attempted to go behind the scenes and explain how the attorneys for Merck and the plaintiffs suing the company arrived at such an agreement.